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Judgment
The petitioner seeks anticipatory bail in connection with Bongaon Police Station Case No. 299 of 2018 dated 01.05.2018 under Sections 498A/302/34
of the Indian Penal Code. The first ground taken by the State is that this petition should not be heard on merits since a warrant of proclamation has
been issued against the petitioner and the same has been duly published.
In support of such contention, a judgment reported at (2012) 8 SCC 730 (Lavesh v. NCT of Delhi) has been cited for the enunciation of the law, inter
alia, at paragraph 12 thereof. What fell for consideration in that case was as to how relevant the post-incident conduct of the petitioner would be in
considering the petitioner’s prayer for anticipatory bail and even as to how the post-interim protection conduct of the petitioner would impact the
matter. It will be evident from the relevant dates indicated in the judgment that the petitioner had been absconding for long and was declared a
proclaimed offender. Thus, the Supreme Court found the conduct of the accused to be unworthy of being granted anticipatory bail.
In the present case, the complaint was lodged on May 1, 2018. On or about August 18, 2018, a prayer was made for the issuance of a warrant of
arrest and the returnable date therefor was fixed on August 23, 2018. However, the matter was taken up on August 27, 2018 when a prayer was
made for the issuance of a warrant of proclamation against the petitioner. The necessary order was passed on August 27, 2018. On August 30, 2018,
the investigating officer visited the relevant village under Bongaon Police Station and found the petitioner herein not available in the village. The
warrant of proclamation was read out to the local witnesses and their signatures obtained thereon. A copy of the warrant was affixed to a
conspicuous part of the house of the petitioner.
Section 82 of the Code provides for a proclamation to be published. For the conclusive evidence that the proclamation was published, Section 82(3)
mandates that a statement in writing by the Court issuing the proclamation has to be made. In respect of certain specified offences, Section 82(4) of
the Code requires a person against whom a proclamation has been issued to be pronounced as a proclaimed offender and a declaration to be made to
such effect.
Even though it appears from the investigating officer’s report that the proclamation may have been published by reading the order aloud at a public
place and by affixing a copy thereof to a conspicuous part of the petitioner’s residence, there is no statement issued by the trial court regarding the
publication of such proclamation. Further, since there is no statutory bar for entertaining a petition under Section 438 of the Code upon a proclamation
being issued or published, it is the essence of the Supreme Court dictum carved out from the judgment in Lavesh that has to be followed. The mere
issuance of a warrant of arrest followed by the mechanical issuance of a proclamation without recording any satisfaction that the concerned person
had dodged the service of the warrant of arrest, may not amount to the kind of conduct referred to in Lavesh to disentitle an accused from
approaching a Court under Section 438 of the Code.
In this case, the issuance of the proclamation was close on the heels of the issuance of the warrant of arrest without any satisfaction recorded by the
trial court as to the necessity for the proclamation to be issued. A proclamation ought only to be issued against a person who is found to be absconding
or concealing himself so that a warrant of arrest cannot be executed. It can scarcely be accepted that a warrant of arrest issued on a Monday
remains unserved till Wednesday and the proclamation would be issued on Thursday without the investigating officer demonstrating that a battery of
persons attempting to execute the warrant had failed in their collective endeavour. The mechanical issuance of a proclamation on the mere prayer of
the investigating agency may not be the be-all or end-all of a matter for the dictum in Lavesh to be attracted and debar the petitioner from exercising a
basic right as under Section 438 of the Code.
In the context of how things panned out in this case, the conduct of the petitioner is not such as would prompt this Court to not entertain the petition
under Section 438 of the Code on merits. The essence of the judgment in Lavesh does not prohibit this petition being taken up on merits. The petitioner
is the sister of the husband of the victim who claims not to have been involved in the incident which led to the death of the victim.
The State produces the case diary and there is a statement of the victim prior to her death that the fire may have been accidental in nature.
Considering the material and the extent of this petitioner’s involvement in the incident that led to the death of the victim, there is no need for her to
be taken into custody. Accordingly, in the event of arrest, the petitioners are directed to be released on bail upon furnishing a bond of Rs.10,000/-
(Rupees Ten Thousand Only) with two sureties of Rs.5,000/- (Rupees Five Thousand Only) each, one of whom must be local, to the satisfaction of
the Arresting Officer, subject to the conditions laid down under Section 438(2) of the Code of Criminal Procedure, 1973. In addition, the petitioner will
also report to the Investigating Officer at such time and place as may be specified by the concerned police officer. The petition for anticipatory bail is
allowed on the conditions indicated above. A certified copy of this order be immediately made available to the petitioners, subject to compliance with
all requisite formalities.